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LIBRARY OF CONGRtJJ 

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021 394 489 7 ^ 



Hollinger Corp. 
pH8.5 



opy 1 



THE 

"Orders in Councir' 



OF 



March, 1915 



AND 



The " War Zone '' Decree 



A Letter to the State Department 



Qih 

Authoo 



[copy telegram.] 

March 19, 1915. 

Robert Lansing, 

Counselor of the State Department, 
AV'asliingtoii, I). C. 

The New York Times purports to give a sum- 
mar}^ of a proposed identical American note to 
France and England. If correctly given it wonld 
appear that Ave wholly overlook therein the doc- 
trine of reprisal npon which alone and specifically 
the Orders in Conncil are based. Such a course 
wonld lay ns open to a claim of disingennonsness 
and of a species of special pleading unbecoming to 
this nation. Reprisal does not import necessarily 
any sense of identity of method, but only of simi- 
larity of effective resnlt, and this the Orders in 
Conncil are directly aimed to produce, i. e. a 
stoppage of the commerce of a belligerent which 
was also the object of the War Zone decree to 
which they are the repl,y. The difference, however, 
is that Germany threatened to produce that result 
by violence and incidental loss to neutrals in life 
and property, while France and England propose 
to bring it about with safety and compensation to 
neutrals. A failure to affirmatively recognize in 
our note that the Orders in Council are reprisal 
might justly be regarded as the taking of a dis- 
tinctly unfriendly attitude and a departure from 
our neutral position — unless there were intent to 
embroil the country and unless a bringing on of 
war were the ultimate object. We should avoid plac- 
ing ourselves in the position of being disingenuous, 
as at some time we would have to bear the burden 



of having taken siicli a position. This slionld be 
bi'onglit iineq 111 vocally before the State Depart- 
ment. Since our position among the nations re- 
qnires onr meeting the real issne, not a pretended 
one. The countrj^ won Id not sustain an adminis- 
tration on the facts becoming apparent if any less 
ingenuous course Avere pursued. A limited or 
partial or qualified blockade can be properly 
adopted as medium of reprisal without the belliger- 
ent being subject to demand that it be made more 
drastic. iMeanwhile the incorporation of penalties 
for evasions which were only rendered possible by 
the ameliorated c(mditions provided is justifiable 
and continuity of voyage is our own doctrine. 

Chas. Stewart Davison. 



March 19th, 1915. 

Robert Lansing, Esq., 

Counselor of the State Department, 
Washington, D. C. 

Dear Sir: — 

I am handing yon herewith (in confirmation) a 
copy of tlie telegram which I sent yon to-day in 
relation to the pnrported summary, contained in 
this morning's issue of the New York Times, of our 
proposed note in reply to the notes from France 
and England and the British Orders in Council. 

It may be that the information so categorically 
given in the New York Times is erroneous, though 
as it is sub-divided into paragraphs and deals cate- 
gorically with various of the phases of the matter, 
it bears internal evidence of being founded on 
specific information. Also the appended general 
comment in the Times follows in detail and ex- 
pands each proposition which it sets forth in its 
summary. I note that others of the New York 
papers, notal)ly the Sun and Herald, differ from 
the Times in their reviews of what is expected to 
be the scope of the identical note and represent it 
as being more in accordance with the actual situa- 
tion, nevertheless, they indicate that the gravamen 
of our protest will be placed upon the claim that 
the French-English procedure is a "Blockade", 
whereas it is in fact an employment of "the 
right of reprisal." So far as neutrals are con- 
cerned any steps permissible under the doctrines 
of international law may be adopted as reprisal, 
and it is immaterial whether such steps assimi- 
late themselves, so far as they go, to "blockade" 
or to any other of the legitimate aspects of a 
state of war between belligerents. The entire 
subject is summarized by AVheaton (part Fourth, 
chap.: ii) in his paragraph regarding what he 
terms "the right to reprisal or vindicative 
retaliation"^ — and vou will note that the British 



Orders in Council made public on the IStli instant 
use in their preamble, concerning the so-called War 
Zone decree of Germany, the phrase "such attempts 
"on the part of the enemy give * * * an un- 
"questionable right of retaliation" and continuing 
state that it has "therefore" been "decided to adopt 
''further measures in order to prevent commodities 
"of any kind from reaching or leaving Germany." 
Wheaton's statement applies with exactitude to 
the present situation. He says : "The ^yhole inter- 
"national code is founded upon reciprocity. The 
"rules it prescribes are observed by one nation, in 
"confidence that they will be so by others. Where, 
"then, the established usages of war are violated by 
"an enemy, and there are no other means of re- 
"straining his excesses, retaliation may justly be 
"resorted to by the sutfering nation, in order to 
"compel the enemy to return to the observance of 
"the law which he has violated" (see also on this 
subject Vattell, liv. iii, ch: 8, § 142; ch. 9, §§ 16G- 
173. Martens Precis du Droit des Gens Moderne de 
I'Europe, liv. viii ch: 4, §§ 272-280. Kliiber, part 
II. tit. 2 sec. 2, ch: 1, §§ 2G2-265). The position 
which it is proposed that we should take according 
to the New York Times is that of attempting to 
force France and England into the declaration of 
a technical "Blockade" : that we should then con- 
tend with them as to the characteristics of the only 
"blockade" which the introduction of submarine 
warfare makes possible: to wit: a so-called "long 
"distance blockade" : as well as upon the subject 
of a distinction existing in the doctrine of contin- 
uity of voyage (in its relation to blockades) be- 
tween contraband and non-coutraband goods. Such 
a course on our part would be disingenuous. I do 
not conceive it possible that it should be contem- 
I)lated. Mean\\'hile the New York Sun in its review 
of our proposed note says that the objections will 
be "narrowed down to a few specific questions'" 
i. e., the application of the doctrine of continuity 
of voyage to non-contraband goods, the lack of 
definiteness contained in the expression that the 



steps contemplated will be limited to European and 
Mediterranean waters and the expressed possibil- 
ity of condemnation being visited upon a merchant 
vessel which : being allowed to pass as having an 
ostensible destination to a neutral port proceeds to 
an enemy port; if it be captured on a subsequent 
voyage. As to the first of these : so far as we may 
have limited the doctrine of continuity of voyage 
during the period of our Civil War to contraband 
this was a limitation of convenience an extension 
beyond the point to which we enforced the doctrine 
not being deemed necessar^^ 

While I have in my telegram referred to the con- 
tinuity of voyage doctrine als "ours", chiefly because 
of the prominence which we gave it in application 
during our Civil AVar, it may be noted that it orig- 
inated with Lord Stowell (Sir William Scott) and 
was applied against ourselves during the early por- 
tion of the nineteenth century — the well known 
cases of the Folly, the Maria and the William being 
illustrative thereof. As to the second point, lack 
of definiteness as to radius of operations, it may be 
observed that the Orders in Council are at least as 
definite in delimitation of radius of operations as 
is the War Zone decree. Note also that in parallel 
case we would have no difficulty in understanding 
where "American waters" are, we should have 
equally no difficulty in understanding where 
"European and Mediterranean" waters are. A ves- 
sel clearing for any port on the European coast, or 
any port on the non-European coasts of the Medi- 
terranean, would clearly contemplate going within 
waters properly to be designated as "European or 
Mediterranean". A vessel clearing for any other 
port would not have necessity to traverse any 
waters which by any possibility could be deemed 
"European" or "Mediterranean". As for the third 
point, liability to condemnation if: having been 
allowed to pass as having a destination to a neutral 
port a vessel proceeded to an enemy port and was 
subsequently captured : it would seem that we could 
ill afford to sustain the cause of a vessel which un- 



G 



dertook to take advantage of the ameliorated con- 
ditions provided by a belligerent, to mitigate as far 
as possible the burdens placed upon the commerce 
of a neutral by the existence of a war, through 
practising on ourselves the fraud of taking out 
false clearance papers. 

The summary of the proposed note given in the 
New York Herald tends to indicate a limitation of 
our proposed protest to any enforcement of the re- 
taliatory measure, in the case of non-contraband 
goods, under the doctrine of continuity of voyage: 
and to the alleged lack of deliuiteness in the defined 
radius of action. These two points are dealt with 
above but it may be well to point out that "contra- 
band" is an elastic term dependent for its definition 
upon the actual conditions of a given situation and 
that, as to a country which adopts the rule of uni- 
versal military service for its males, takes over the 
regulation of the distribution of food, and appro- 
priates the stock of metals and other commodities, 
any of these may legitimately be included within 
the definition of contraband for the occasion, 
whether they or any of them might under other cir- 
cumstances properly be excluded therefrom. 

The New York AVoild in its summary and review 
of the prospective note substantially describes it as 
a proposed attempt to claim that a limitation exists 
against France and Great Britain's making a simul- 
taneous application of the rules of blockacle and the 
rules governing contraband and non-contraband — 
this in accordance with the prior American note. 
The answer is found in the major proposition that 
the Orders in Council are retaliatory and that, in 
reprisal, or retaliation, any and all doctrines of 
international law may be availed of by a retaliating 
nation simultaneously or separately to such extent 
as is deemed advisable, without objection by neu- 
trals, provided only that any so availed of are rules 
applicable to neutrals. 

Summarizing, then, the position Avliich it is pro- 
posed we should take, as the same is found indi- 
cated in anticipation, in the public press, it would 



appear that we were about to adopt what in my 
telegram of to-dav's date to yon I have ventnred to 
designate as a disingennons position or a species of 
special pleading unbecoming a people of the stand- 
ing among nations of the United States of 
America. 

There is moreover another aspect of this general 
subject which should be referred to, even if but 
briefly. Our original error. Thereby was created 
a false situation in which apparently we find our- 
selves enmeshed. I refer to the fact that Germany, 
having promulgated her AYar Zone decree : we hav- 
ing strongly protested against its utterly illegal 
character in its application to neutrals : received 
from Germany a proposal to mitigate or withdraw 
the illegal proposals so far as neutrals were con- 
cerned if England would make recited concessions 
to her. Our reply should have been that we were 
Neutral. We should have said to Germany that 
we would not bargain with her concerning her il- 
legal proposals any more than we would with Eng- 
land or with France in like case. That if either 
France or England took any steps which invaded 
our neutral rights we would deal with France and 
England and that if Germany undertook to invade 
our neutral rights we would deal with Germany, 
This was not our reply. Instead of this, we placed 
ourselves in the false position of seeking to obtain 
from England concessions to Germany as a condi- 
tion of having Germany respect our neutral rights. 
Hinc illfc lacrimcr. We have placed ourselves in a 
non-sustainable position. We are, as it would ap- 
pear from the predictions concerning our next note 
to France and England, forced into the position of 
quarreling with them as to the details of their re- 
taliatory measures : which retaliation would never 
have existed had we continued in the very proper 
position taken in our original protest to Germany 
against her so-called War Zone decree. It is ap- 
parent from the express terms of that decree that 
it was wholly incapable of enforcement — it so 



8 



stated itself to be — except at the peril of the lives 
and property of neutrals. It would not have been 
attempted to be enforced had we not shuffled and 
vacillated after threatening". If it had not been 
attempted to be enforced no retaliatory measures 
conld have been resorted to. We have been used to 
pnll the chestnuts out of the fire for Germany by 
what can only be descril)ed as most unexampled 
blunderiui>- on our part. The sooner we return to 
a sound diplomatic position and abandon the role 
of volunteer bargainers between belligerents : seek- 
ing to obtain security for our undoubted rights 
from the aggression of the one by obtaining for it 
concessions from the other : the less likely we shall 
be to lose as well the esteem as the respect of all the 
bellicerents. 



I remain, 



Yours respectfully, 

Chas. Stewart Davison. 



Enclosure: Copy of telegram of even date. 



021 394 489 7 



